Sunday, March 06, 2011

DOCTRINE OF SEPARATION OF POWERS

DOCTRINE OF SEPARATION OF POWERS- HOLISTIC APPROACH NEEDED IN THE PUBLIC INTEREST

By K P C RAO.,B.Sc.,LL.B., FICWA.,FCS.,

Practising Company Secretary

kpcrao.india@gmail.com

Introduction

The Separation of Powers, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the un-codified Constitution of the Roman Republic. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches . The normal division of branches is into an executive, a legislature, and a judiciary.

Different Models

Constitutions with a high degree of separation of powers are found worldwide. The UK system is distinguished by a particular entwining of powers. In Italy the powers are completely separated, even if Council of Ministers needs the vote of confidence from both chambers of Parliament, that's however formed by a wide number of members. A number of Latin American countries have electoral branches of government.

Countries with little separation of power include New Zealand and Canada. Canada makes limited use of separation of powers in practice, although in theory it distinguishes between branches of government.

Complete separation-of-powers systems are almost always presidential, although theoretically this need not be the case. There are a few historical exceptions, such as the ‘Directoire’ system of revolutionary France. Switzerland offers an example of non-Presidential separation of powers today: It is run by a seven-member executive branch, the Federal Council. However, some might argue that Switzerland does not have a strong separation of powers system, as the Federal Council is appointed by parliament (but not dependent on parliament), and the judiciary has no power of review.

Theory of Classification of powers

The theory of separation of powers signifies three formulations of structural classification of governmental powers:

(i)The same person should not form part of more than one of the three organs of the government. For example, ministers should not sit in Parliament.

(ii)One organ of the government should not interfere with any other organ of the government.

(iii)One organ of the government should not exercise the functions assigned to any other organ.

In the Indian Context

In a welfare State, the State performs important functions as a Provider, Entrepreneur and Economic Controller, and the objective of the rule of law should be to see that these multifarious and diverse encounters are fair, just and free from arbitrariness. Therefore, it is important to structure and restrict the power of the executive government so as to prevent its arbitrary application or exercise. The rule of law which runs like a golden thread, through every provision of the Constitution and indisputably constitutes one of its basic features requires that every organ of the State must act within the powers conferred upon it by the Constitution and the law.

In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody nay formalistic and dogmatic division of powers. The Supreme Court in RamJawaya Kapur v. State of Punjab[1], held.

“Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another.”

In Indira Nehru Gandhi v. Raj Narain[2], Ray C.J. observed that in the Indian Constitution there is separation of powers in a broad sense only. A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India. However, the court held that though the constituent power is independent of the doctrine of separation of powers to implant the theory of basic structure as developed in the case of Kesavananda Bharati v. State of Kerala[3] on the ordinary legislative powers will be an encroachment on the theory of separation of powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic structure of the Constitution. None of the three separate organs of the Republic can take over the functions assigned to the other. This scheme of the Constitution cannot be changed even by resorting to Article 368 of the Constitution.

Overlapping

In India, not only is there a ‘functional overlapping’ but there is ‘personnel overlapping’ also. The Supreme Court has the power to declare void the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution or the law passed by the legislature in case of executive actions. Even the power to amend the constitution by Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes the basic structure of the Constitution[4]. The President of India in whom the executive authority of India is vested exercises law-making power in the shape of ordinance-making power and also the judicial powers under Article 103(1) and Article 217(3), to mention only a few. The council of Ministers is selected from the legislature and is responsible to the legislature. The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the president and the removal of the judges. The executive may further affect the functioning of the judiciary by making appointments to the office of chief Justice and other judge. One can go on listing such examples yet the list would not be exhaustive.

Check and Balance

The separation of powers is a doctrine which provides a separate authority, which makes it possible for the authorities to check each other’s checks and balances. The Supreme Court in Indira Nehru Gandhi v. Raj Narain, it held that adjudication of a specific dispute is a judicial function which Parliament, even acting under a constitutional amending power, cannot exercise.

The Constitution has invested the constitutional courts with the power to invalidated laws made by parliament and State Legislature transgressing constitutional limitations. Where an Act made by the legislature is invalidated by the courts on the ground of legislative incompetence, the legislature cannot enact a law declaring that the judgment of the court shall not operate; it cannot overrule or annual the decision of the court. This is what is meant by “check and balance” inherent in a system of government incorporating separation of powers[5].

If the doctrine of separation of powers in its classical sense, which is now considered as a high school textbook interpretation of this doctrine, cannot be applied to any modern government, this does not mean that the doctrine has no relevance in the world of today. The logic behind this doctrine is still valid. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the State is the soul of the doctrine of separation of powers. Hence the doctrine can be better appreciated as a ‘doctrine of check and balance’ and in this sense administrative process is not an antithesis of the ‘doctrine of separation of powers’.

In Indira Nehru Gandhi v. Raj Narain[6], Chandrachud, J. (as he then was) also observed that the “…political usefulness of the ‘doctrine of separation of powers’ is now widely recognised…” No Constitution can survive without a conscious adherence to its fine checks and balances. “Just as courts ought not to enter into problems entwined in the ‘political thicket’, Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which ‘has in it the precept, innate in the prudence of self-preservation…that discretion is the better part of valour’.

Conclusion

Therefore, the “Doctrine of separation of Powers” in today’s context of Liberalisation, privatisation and globalisation cannot be interpreted to mean either ‘separation of powers’ or ‘check and balance’ or ‘principle of restraint’ but community of powers exercised in the spirit of cooperation by various organs of the State in the best interest of the people.

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About Me

K.P.C.Rao is a Fellow member (FCS) of the ICSI (India), a Fellow member (FCMA) of ICAI (India), a Certified Management Accountant (CMA) of IMA (USA) and a Fellow Member of the Institute of Public Accountants (FIPA) of IPA (Australia).
Presently working as Practising Company Secretary at Hyderabad, India and offering advisory services to many of his clientele on tax matters, corporate finance and restructuring besides undertaking regular corporate secretarial practice.
He has hands on experience in the areas of corporate
restructuring, financial analysis, mergers, de-mergers, acquisitions, take-overs,
secretarial practice, general administration and treasury management. He has worked in senior management positions in both public and private sectors.Widely travelled internationally.He is a faculty member at the Institutes of the ICSI,ICAI and at the NALSAR University of Law. Read
exhaustively through his articles and contributions to various legal Corporate Law
Journals and National publications of Corporate academics.Co-authored more than 100 Books for Law/CA/CWA/CS sudents and Published more than 200 Articles of Legal& National importance along with Dr Padma.